121 N.Y.S. 478 | N.Y. App. Div. | 1910
Plaintiff brings this action as the assignee of Joseph E. Kennedy to recover the purchase price of a concrete mixer manufactured for the defendant by said Kennedy. The jury rendered a verdict for the defendant, and the learned justice presiding at the Trial Term set the verdict aside and granted plaintiff’s motion for a new trial for errors in the charge as to the burden of proof.' The jury were told that “ the burden of proving that this machine was ordered and sold without any warranty, without any representation, rests upon the plaintiff, and that means that the plaintiff must satisfy you by a fair preponderance of the evidence * * * that Williams ordered this machine manufactured and delivered to the defendant without receiving from Kennedy any representation or warranty respecting the quality of the machine or the work that it would do.” If the defense in this ease had rested upon the breach of an implied warranty the rule as stated would have been correct. When the contract is executory, in the absence of an- express warranty as to quality, there is an implied warranty upon the sale of a chattel by the manufacturer thereof that the chattel is reasonably fit and suitable for the purpose for which it was intended and was purchased. (Hoe v. Sanborn, 21 N. Y. 552; Edwards v. N. Y. &
The order setting aside the verdict and granting the motion for a new trial should be affirmed, with costs.
_ Woodward, Jenks, Thomas and Rich, JJ., concurred.
Order setting aside verdict and granting a new trial affirmed, with costs.